Pierre v. Garland

Opinion

22-6507 Pierre v. Garland BIA

Conroy, IJ

A059 579 627

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 18th day of December, two thousand 4 twenty-three. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 JOSEPH F. BIANCO, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 STANLEY PIERRE, 14 Petitioner, 15 16 v. 22-6507 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Craig Relles, Law Office of Craig Relles, 24 White Plains, NY.

1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Stephen J. Flynn, Assistant 3 Director; Anna Juarez, Senior Litigation 4 Counsel, Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a Board of

9 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 10 DECREED that the petition for review is DENIED. 11 Petitioner Stanley Pierre, a native and citizen of Haiti, seeks review of a 12 September 29, 2022, decision of the BIA affirming a February 8, 2022, decision of 13 an Immigration Judge (“IJ”) denying his application for withholding of removal 14 and relief under the Convention Against Torture (“CAT”). In re Stanley Pierre, 15 No. A 059 579 627 (B.I.A. Sept. 29, 2022), aff’g No. A 059 579 627 (Immig. Ct. N.Y. 16 City Feb. 8, 2022). We assume the parties’ familiarity with the underlying facts 17 and procedural history. 18 We have considered both the IJ’s and the BIA’s decisions. See Wangchuck v. 19 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). Our jurisdiction to review 20 an order of removal based on an aggravated felony is limited to constitutional 21 claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D). This jurisdictional

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1 limitation does not apply to review of CAT claims, and the Supreme Court has left 2 open whether it applies to withholding of removal. See Nasrallah v. Barr, 140 S. 3 Ct. 1683, 1690–94 (2020). Because Pierre’s challenge to the denial of withholding 4 of removal relates to whether the agency applied the proper framework in 5 determining that his aggravated felony conviction was a particularly serious 6 crime, we reach that determination. See Ojo v. Garland, 25 F.4th 152, 165 (2d Cir. 7 2022). We find no error in the particularly serious crime determination or the 8 denial of CAT relief. 9 I. Particularly Serious Crime Determination 10 A person convicted of a particularly serious crime is ineligible for 11 withholding of removal. See 8 U.S.C. § 1231(b)(3)(B). For withholding of 12 removal, “an aggravated felony (or felonies) for which the alien has been 13 sentenced to an aggregate term of imprisonment of at least 5 years” is per se 14 particularly serious. Id. § 1231(b)(3)(B)(iv). Pierre does not dispute that his 15 conviction is an aggravated felony. Because he was sentenced to less than five 16 years’ incarceration, his conviction was not per se particularly serious. But the 17 agency has the authority to make an individualized inquiry as to whether a 18 conviction is for a particularly serious crime regardless of the length of sentence.

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1 See Nethagani v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008); see also 8 U.S.C. 2 § 1231(b)(3)(B)(iv). 3 The agency applied the correct legal standard. The agency follows a “two- 4 step analysis.” Ojo, 25 F.4th at 165. First, the agency considers whether the 5 elements of the offense “potentially bring the crime into a category of particularly 6 serious crimes.” In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2007). The IJ 7 engaged in this first step. Pierre was convicted under 18 Pa. Cons. Stat. 8 § 2702(a)(4). That section provides that “[a] person is guilty of aggravated assault 9 if he . . . attempts to cause or intentionally or knowingly causes bodily injury to 10 another with a deadly weapon.” “Bodily injury” is defined as “[i]mpairment of 11 physical condition or substantial pain.” Id. § 2301. “Deadly weapon” is defined 12 as “[a]ny firearm, whether loaded or unloaded, or any device designed as a 13 weapon and capable of producing death or serious bodily injury, or any other device 14 or instrumentality which, in the manner in which it is used or intended to be used, is 15 calculated or likely to produce death or serious bodily injury.” Id. (emphasis added). 16 Pierre’s conviction fell within the ambit of particularly serious crimes because the 17 statute requires intent to cause bodily injury to another person. See Nethagani, 532 18 F.3d at 155 (“[C]rimes against persons are more likely to be particularly serious

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1 than are crimes against property.”); see also Singh v. Barr, 939 F.3d 457, 462–64 (2d 2 Cir. 2019) (upholding BIA’s decision that New York assault provision requiring 3 intent to cause physical injury, physical injury, and use of “deadly weapon or 4 dangerous instrument” was an aggravated felony and a particularly serious 5 crime). 6 Second, the IJ considered the factors set out in Nethagani: “(1) the nature of 7 the conviction, (2) the circumstances and underlying facts of the conviction, [and] 8 (3) the type of sentence imposed.” Nethagani, 532 F.3d at 155 (quotation marks 9 omitted); see also Ojo, 25 F.4th at 165 (“[T]he agency examine[s] the nature of the 10 conviction, the type of sentence imposed, and the circumstances and underlying 11 facts of the conviction to determine if [a crime] is particularly serious.”). The IJ 12 considered the nature and circumstances of the conviction—that the conviction 13 required intent to cause injury and a deadly weapon, and that Pierre intentionally 14 hit the victim with his car with enough force to throw him onto the hood, 15 continued to accelerate while the victim was on the hood, and made a right turn 16 which threw the victim onto the pavement. And the IJ considered the length of 17 the sentence, noting that Pierre had no evidence to corroborate his claim that he 18 served his sentence at a halfway house and on probation. Because the agency

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1 considered the relevant factors and the facts reflect an intentional act of violence 2 against another, the agency did not err in concluding that the crime was 3 particularly serious. 1 See Nethagani, 532 F.3d at 155. 4 II. CAT Relief 5 Pierre’s conviction does not bar deferral of removal under the CAT. A CAT 6 applicant has the burden to establish that he would “more likely than not” be 7 tortured by or with the acquiescence of a public official. 8 C.F.R. §§ 1208.16(c)(2), 8 1208.17(a), 1208.18(a)(1); see Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004). 9 A CAT claim is “too speculative” if “it involves a chain of assumptions”; an 10 applicant is required to show that each “link in the chain . . . [is] more likely than 11 not to occur.” Savchuck v. Mukasey, 518 F.3d 119, 123–24 (2d Cir. 2008) (quotation 12 marks omitted). We review factfinding for substantial evidence and questions of

1 To the extent that Pierre asserts that the evidence was insufficient to establish his conviction, his argument is unavailing. The record contains the Superior Court of Pennsylvania’s denial of Pierre’s appeal, which confirms that Pierre “appeals from the judgment of sentence imposed following his conviction of aggravated assault, recklessly endangering another person, reckless driving, and failure to stop and render aid.” See Matter of J. R. Velasquez, 25 I. & N. Dec. 680, 686 (B.I.A.

2012) (noting that “other documents such as an appellate court decision affirming or otherwise referencing a conviction would appear to fall within the catch-all regulatory provision” of 8 C.F.R. § 1003.41(d)); Ojo, 25 F.4th at 157 (“all reliable information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information”).

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1 law and application of law to fact de novo. Quintanilla-Mejia v. Garland, 3 F.4th 2 569, 583 (2d Cir. 2021). 3 As an initial matter, Pierre’s challenge to the agency’s determination that his 4 denial of involvement in a gang was not credible lacks merit. “A trier of fact may 5 base a credibility determination on the demeanor, candor, or responsiveness of the 6 applicant or witness” and inconsistencies within and between an applicant’s 7 statements and other evidence.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an 8 IJ’s credibility determination unless, from the totality of the circumstances, it is 9 plain that no reasonable fact-finder could make such an adverse credibility 10 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 11 Substantial evidence supports the agency’s determination that Pierre was 12 not credible on this point. He testified that he was not a member of a gang. But 13 the Department of Homeland Security (“DHS”) filed a report documenting an 14 investigation that revealed, among other things, that Pierre was arrested in 2016 15 alongside two known Hyena Crip members. When questioned about these facts, 16 Pierre first stated that he was not familiar with a gang named “Hyena Crew”; but 17 moments later, he confirmed that he was aware that the individuals he was 18 arrested with were a part of the Hyena Crew. Given Pierre’s own inconsistent

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1 statements and the DHS report connecting him to the gang, substantial evidence 2 supports the IJ’s determination that Pierre’s denial of gang membership was not 3 credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137, 145 n.8 4 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from 5 showing that an IJ was compelled to find him credible.”). 6 The agency did not otherwise err in denying the CAT claim. In 7 determining the likelihood of torture, the agency considers evidence of past 8 torture and evidence of human rights violations in the country of removal among 9 any other relevant information. 8 C.F.R. § 1208.16(c)(3). Pierre did not allege 10 past torture. Instead, he alleged that he would more likely than not be tortured 11 by government officials on account of his criminal deportee status and the length 12 of time he has lived in the United States. He also alleged that he would face a 13 higher risk of torture from gangs due to his connections with his mother’s voodoo 14 practice, his father’s kidnapping, and his cousin’s murder. 15 The agency found that Pierre did not establish a likelihood of torture or that 16 if he were detained that Haitian officials would have a specific intent to torture 17 him. Pierre’s expert witness concluded that “[a]ll criminal deportees from the 18 United States are detained for at least hours upon their arrival” and that these

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1 deportees face a “sharply increased risk of arrest” after release due to the 2 perception that they are career criminals and gang members. The expert’s report 3 goes on to explain that Haitian prison conditions are “brutal and inhumane” and 4 “beating and other torture” is commonplace. However, this possibility of 5 detention for a few hours or an increased risk of future detention does not establish 6 that Pierre is more likely than not to be tortured while detained for those few hours 7 or that he will more likely than not be detained in the future. See Savchuck, 518 8 F.3d at 124. 9 Moreover, a CAT claim based on prison conditions requires a showing of 10 government intent to torture. See Pierre v. Gonzales, 502 F.3d 109 (2d Cir. 2007). 11 The dire conditions in Haitian prisons do not alone demonstrate the “specific 12 intent” necessary to constitute torture under the CAT. Id. We left open the 13 possibility that a prisoner with “certain histories, characteristics, or medical 14 conditions” might be “more likely to be targeted not only with . . . individual acts 15 but also with particularly harsh conditions of confinement.” Id. Pierre argues 16 that the agency failed to account for his criminal history and his time spent in the 17 United States, however, he produced no evidence that anyone would intend to 18 torture him for those reasons. See Pierre, 502 F.3d at 121–22 (“The failure to

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1 maintain standards of diet, hygiene, and living space in prison does not constitute 2 torture under the CAT unless the deficits are sufficiently extreme and are inflicted 3 intentionally rather than as a result of poverty, neglect, or incompetence.”). 4 To the extent Pierre relies on his mother’s voodoo practice, father’s 5 kidnapping, or his cousin’s murder, he has not shown how these factors would 6 materially increase his likelihood of torture. “In the absence of solid support in 7 the record . . . [applicant’s] fear is speculative at best.” Jian Xing Huang v. U.S. 8 INS, 421 F.3d 125, 129 (2d Cir. 2005). And although Pierre claims that the agency 9 failed to consider these risks in the aggregate, the BIA specifically considered this 10 argument and noted that the IJ “thoroughly considered the array of different 11 sources from whom the respondent asserted a risk of torture and the various 12 reasons for his fear of harm, and determined that they do not amount to a 13 likelihood of torture based on the entirety of the record.” See Xiao Ji Chen v. U.S. 14 Dep’t of Just., 471 F.3d 315, 337 n.17 (2d Cir. 2006) (“[W]e presume that [the agency] 15 has taken into account all of the evidence before [it], unless the record 16 compellingly suggests otherwise.”). 17 Accordingly, on this record, the agency did not err in concluding that Pierre 18 failed to satisfy his burden of proof for CAT relief. See 8 C.F.R. §§ 1208.16(c)(2),

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1 1208.17(a), 1208.18(a)(1); see also Quintanilla-Mejia, 3 F.4th at 593–94 (“[S]ubstantial 2 evidence review does not contemplate any judicial reweighing of evidence. 3 Rather, it requires us to ask only whether record evidence compelled . . . [a] finding 4 different from that reached by the agency.”). 5 For the foregoing reasons, the petition for review is DENIED. All pending 6 motions and applications are DENIED and stays VACATED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court